Opinion
D081880
04-11-2024
THE PEOPLE, Plaintiff and Respondent, v. JOSE MARTIN TORRES, Defendant and Appellant.
Marta I. Stanton, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Donald W. Ostertag and Robin Urbanski, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County No. SCN396453, Robert J. Kearney, Judge. Affirmed.
Marta I. Stanton, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Donald W. Ostertag and Robin Urbanski, Deputy Attorneys General, for Plaintiff and Respondent.
O'ROURKE, Acting P. J.
Jose Martin Torres pleaded guilty to assault on a peace officer with a semiautomatic firearm (Pen. Code, § 245, subd. (d)(2); count 2), resisting an executive officer (§ 69; count 4), evading an officer with reckless driving (Veh. Code, § 2800.2, subd. (a); count 11), and discharging a firearm in a grossly negligent manner (§ 246.3, subd. (a); count 12). As to count 2, Torres admitted he personally used a firearm (§§ 12022.5, subd. (a), 12022.53, subd. (b)). He also admitted he suffered a 2008 strike prior (§§ 667, subd. (b)-(i), 1170.12), which also qualified as a serious felony prior (§ 667, subd. (a)). In exchange, the People dismissed several charges pending against Torres, including one for attempted murder.
Undesignated statutory references are to the Penal Code.
The court sentenced Torres to 33 years in state prison: on count 2, the middle term of seven years, doubled to 14 years under the "Three Strikes" law, plus 10 years for the section 12022.53, subdivision (b) enhancement. It imposed 16 months each on counts 4, 11 and 12 plus five years under section 667, subdivision (a)(1).
Torres contends the court abused its discretion by declining to strike his prior conviction under People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero), and erroneously failed to apply section 1385 so as to dismiss a sentencing enhancement. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
As Torres pleaded guilty, we take the facts from the probation report and his plea agreement. In February 2019, at approximately 1:30 a.m., Torres, apparently intoxicated, went to his former girlfriend's home and asked to speak with her. When told she was not home, he became agitated, walked down the driveway, and fired several gunshots.
Shortly afterwards, Torres led law enforcement officers on a high speed vehicular chase in which he drove up to 120 miles per hour. The officers deployed a spike strip, which detained his vehicle. An officer ordered Torres to remain in his vehicle, but he got out with a gun in his hand and ran. Officers chased him into a field, and Torres fired multiple times at the officers. An officer shot Torres in the foot. After a brief physical struggle, an officer tased Torres and took him into custody.
At a hospital that morning, Torres's blood tested positive for alcohol, cannabinoids and cocaine.
DISCUSSION
I. Romero Motion
As he did in the trial court, Torres contends he falls outside the spirit of the Three Strikes law, pointing out his 2008 prior strike is remote and his subsequent convictions are not for violent offenses but only misdemeanor offenses of driving under the influence of alcohol. He also contends no one was seriously injured in the current offense, he is remorseful and took responsibility by pleading guilty, he expressed a strong desire to rehabilitate himself, and his mental health and substance abuse problems might partly account for his criminal conduct.
A. Background
In moving the court to strike his prior strike conviction, Torres submitted a letter from a residential facility for former alcoholics, drug addicts and convicts that had accepted him for a two-year commitment. He also submitted a forensic psychological evaluation showing he was diagnosed with alcohol and cocaine abuse disorder, letters of support, and a San Diego County Alternate Public Defender investigator's interview notes.
At the hearing on the motion, the People argued: "[Torres] has been a danger to society for many years as proven by his criminal history, and his very violent and dangerous conduct that he exhibited on the date of this incident."
The probation report lists Torres's "lengthy criminal history beginning at the young age of 14 years old," as well as his offenses as an adult, starting in 2004. It includes convictions for domestic violence, driving under the influence of alcohol, and evading police officers. In 2008, Torres and two others attacked a male who was out walking with his wife and baby. The victim had multiple sclerosis, and previously suffered a stroke that affected one side of his body.
The probation officer summarized Torres's criminal history: "As a juvenile, [a court made true findings he] committ[ed] assault with a deadly weapon, sexual battery, and robbery. As an adult, [his] violent criminal behavior continued wherein[ ] he was convicted of domestic violence, driving under the influence and assault by means likely to cause great bodily injury for the purpose of a street gang. As an adult each of his felony convictions resulted in a prison commitment due to his poor performance on formal probation." The probation officer elaborated: "[Torres] has served three grants of felony formal probation, three grants of misdemeanor summary probation, juvenile supervision, and parole. [He] incurred numerous violations and revocations of probation for failing to comply, failing to remain law abiding, continuing to use controlled substances and alcohol, and absconding supervision. [His] poor performance on his felony formal grants ultimately resulted in three separate prison sentences. [His] performance on each grant was abysmal."
After reviewing the probation report and the parties' moving and opposing papers and evaluating counsels' arguments, the court denied Torres's request to strike his prior strike conviction. Even taking into account his history of drug and alcohol abuse, the court ruled he came within the spirit of the Three Strikes law: "This was a [section] 245 [conviction] with a gang allegation [committed] in 2008. [Torres] was sentenced to prison for three years. He had four parole violations. His new offense, which he pled guilty to, occurred eight or nine years after he was released from prison. The facts of the offense of the prior strike are egregious. The victim had multiple sclerosis, had his baby with him, was attacked for no reason[;] beaten. [¶] [Torres] has committed three crimes after he was released from prison in 2011, 2014 and 2016. Two other crimes were dismissed for the plea in this case [that] both occurred in 2018. [¶] . . . [Torres] ha[d] three documented assault incidents in jail while he's been in custody on this case. So ultimately, he's had a long history since 1997 through the present."
B. Applicable Law
We review a trial court's failure to strike a prior conviction allegation for abuse of discretion. (People v. Williams (1998) 17 Cal.4th 148, 162 (Williams).) Absent a showing that the court acted arbitrarily or irrationally, we presume the court"' "acted to achieve [the] legitimate sentencing objectives [of the Three Strikes law], and its discretionary determination to impose a particular sentence will not be set aside on review." '" (People v. Carmony (2004) 33 Cal.4th 367, 376-377 (Carmony).)
Trial courts have the discretion to dismiss "strike" prior convictions in limited cases (Romero, supra, 13 Cal.4th at p. 530) where the dismissal is "in furtherance of justice" (§ 1385; People v. Thimmes (2006) 138 Cal.App.4th 1207, 1213). The court determines "whether, in light of the nature and circumstances of [the defendant's] present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the [Three Strikes] scheme's spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies." (Williams, supra, 17 Cal.4th at p. 161.) Relevant here, "[a] repeat criminal falls outside the spirit of the Three Strikes law only in extraordinary circumstances." (People v. Anderson (2019) 42 Cal.App.5th 780, 786, citing Carmony, supra, 33 Cal.4th at p. 378; see People v. Gaston (1999) 74 Cal.App.4th 310, 320 (Gaston) [unrelenting record of recidivism compels conclusion that defendant falls within the spirit of the Three Strikes law].)
C. Analysis
Torres's lengthy criminal history includes acts of physical aggression against domestic partners and a brutal assault of a random person in the street. The instant crimes involved reckless and life-threatening conduct like firing a gun in a driveway, a high-speed chase, and firing shots in the direction of police who were trying to detain him and protect the public. His performance in detention has been unsatisfactory, as he has engaged in assaultive conduct. He has shown no improvement while on community supervision, leading to multiple revocations of his parole or probation. In sum, he is a danger to the public and he falls within "the spirit of the Three Strikes law." (Williams, supra, 17 Cal.4th at pp. 162-163.)
Although Torres contends his 2008 conviction was remote, that fact, by itself, cannot be the basis for dismissing a prior strike conviction. (§ 667, subd. (c)(3); People v. Strong (2001) 87 Cal.App.4th 328, 342.) It is true that a remote conviction may be dismissed if it is followed by a long crime-free period evidencing rehabilitation. But "older strike convictions do not deserve judicial forgiveness unless the defendant has used them as a pivot point for reforming his ways." (People v. Mayfield (2020) 50 Cal.App.5th 1096, 1107-1108 [reversing the trial court's dismissal of one of two prior strike convictions where the defendant "failed to reform his behavior during the decade plus that elapsed between his first strike conviction and his third strike conviction"].) Here, it cannot be said that Torres reformed his ways after his strike conviction. To the contrary, he continued to commit crimes, was sent to prison, was paroled, violated parole, and committed further crimes. Under these circumstances, the mere fact that his prior strike conviction was 15 years old cannot justify granting his Romero motion. (Accord, People v. Dain (2024) 99 Cal.App.5th 399).
Torres's reliance on the letters in support, his age, and psychological diagnosis of mental health and substance abuse problems is unavailing in light of the above record. We conclude this is not an "extraordinary case" where the evidence "manifestly support[s] the striking of a prior conviction and no reasonable minds could differ." (Carmony, supra, 33 Cal.4th at p. 378.) A reasonable judge would find that his criminal history shows an "unrelenting record of recidivism," with increasing violence, such that he falls within the spirit of the Three Strikes law. (Gaston, supra, 74 Cal.App.4th at p. 320.)
II. Section 1385
Torres contends that under the plain terms of section 1385, subdivision (c), the trial court was required to dismiss the 10-year firearm enhancement as well as the serious felony prior enhancement. He alternatively contends the court "abused its discretion by concluding that dismissal of the enhancements would endanger public safety." He asserts he "committed the offenses while he was under the influence, [he] intends to address his substance abuse problems while in custody, [he] is remorseful, and he is aging[,] making it less likely that he will commit future crimes."
At the sentencing hearing, Torres contended, consistent with the criteria set forth in section 1385, subdivision (c)(2)(A) through(D) and (H), that the court should dismiss his enhancements because application of the enhancement would have a discriminatory racial impact on him as he is Latino, multiple enhancements are alleged, application of the enhancement could result in a sentence of over 20 years, the current enhancement is related to mental illness, and the enhancement is based on a prior conviction that is greater than five years old. Defense counsel further argued: "So I'm asking the court that based on the totality of the circumstances that the nickel prior should be stricken, that the ten-year enhancement should be stricken, and that [Torres's] strike prior should be stricken. Particularly, since we have two of the mitigating circumstances that have the language that says, [']shall['] be stricken."
The People contended that in the furtherance of justice, the court should not dismiss the enhancements: "[Torres] has deserved, as earned, every one of his 33 years given the numerous crimes that he committed that day, looking at his criminal history that goes back to the years as a juvenile, the fact that he's had an issue with substance abuse for quite a while and there's nothing to tell us that he's going to stop doing this; therefore, there's nothing to tell us that his violent tendencies are going to end this violent, irrational, very dangerous behavior something that this community needs to be protected from for as long as possible, and to do anything short of that I would suggest to the court is not in the furtherance of justice."
The court denied Torres's motion: "I have read [defense counsel's] analysis . . . and I have looked at all of the support and argument that the court should strike an allegation under [section 1385, subdivision (c).] The court however will not do so, [as] to do so would endanger public safety. Based on [Torres's] criminal history, the fact that he put innocent lives at risk at [his ex-girlfriend's] house, [and] on the freeway[,] I do believe that to dismiss enhancements in this particular case would endanger public safety."
Section 1385 has long permitted trial courts to dismiss sentence enhancements if doing so is in the furtherance of justice. (See former § 1385, as amended by Stats. 1986, ch. 85, § 2, eff. May 6, 1986.) In 2021, the Legislature passed Senate Bill No. 81 (2021-2022 Reg. Sess.), amending section 1385 to not only grant trial courts the authority, but to also impose a duty upon them to strike or dismiss certain sentence enhancements when it is in the interest of justice to do so. The amended statute sets forth nine mitigating circumstances that the trial court must consider when making that decision. (Stats. 2021, ch. 721, § 1; People v. Lipscomb (2022) 87 Cal.App.5th 9, 16.)
As relevant here, section 1385, subdivision (c) now states: "(1) Notwithstanding any other law, the court shall dismiss an enhancement if it is in the furtherance of justice to do so, except if dismissal of that enhancement is prohibited by any initiative statute. [¶] (2) In exercising its discretion under this subdivision, the court shall consider and afford great weight to evidence offered by the defendant to prove that any of the mitigating circumstances in subparagraphs (A) to (I) are present. Proof of the presence of one or more of these circumstances weighs greatly in favor of dismissing the enhancement, unless the court finds that dismissal of the enhancement would endanger public safety. 'Endanger public safety' means there is a likelihood that the dismissal of the enhancement would result in physical injury or other serious danger to others."
Torres relies on the mitigating circumstances in section 1385, subdivision (c)(2)(A)-(I): "(A) Application of the enhancement would result in a discriminatory racial impact as described in paragraph (4) of subdivision (a) of Section 745. [¶] (B) Multiple enhancements are alleged in a single case. In this instance, all enhancements beyond a single enhancement shall be dismissed. [¶] (C) The application of an enhancement could result in a sentence of over 20 years. In this instance, the enhancement shall be dismissed. [¶] (D) The current offense is connected to mental illness. [¶] . . . [¶] . . . [¶] . . . [¶] H) The enhancement is based on a prior conviction that is over five years old."
A trial court's determination that dismissal of an enhancement would endanger public safety is reviewed under the "highly deferential" abuse of discretion standard. (People v. Mendoza (2023) 88 Cal.App.5th 287, 298.) "When,' "as here, a discretionary power is statutorily vested in the trial court, its exercise of that discretion 'must not be disturbed on appeal except on a showing that the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice.'" '" (Ibid.)
In People v. Mendoza, supra, 88 Cal.App.5th 287, the trial court found that dismissal of the enhancement under subdivision (c) of section 12022.53 would endanger public safety based upon several factors. Accordingly, it declined to dismiss the related firearm enhancement, reasoning that" 'if dismissing the enhancement would endanger the public, the Court does not even engage in evaluating the mitigating factors.'" (Mendoza, at p. 293.) In affirming on de novo review of section 1385, the Mendoza court agreed and held that "consideration of the mitigating factors in section 1385[, subdivision] (c)(2) is not required if the court finds that dismissal of the enhancement would endanger public safety." (Mendoza, at p. 297.)
Here, too, the trial court found that Torres had endangered public safety when, without provocation, he began shooting while at his ex-girlfriend's house. Following that, he led police on a high speed chase far exceeding the legal speed limit. When police finally detained him, he defied their orders, left his vehicle, and fired shots at them. He could have easily killed someone. Having properly concluded Torres "put innocent lives at risk" and that dismissal of the enhancement "would endanger public safety," the trial court was not required to further analyze section 1385's mitigating factors. (People v. Mendoza, supra, 88 Cal.App.5th at p. 297.)
DISPOSITION
The judgment is affirmed.
WE CONCUR: DATO, J., BUCHANAN, J.